This
paper covers the Private Member’s Bill introduced by John Taylor to
deal with the problems of high hedges. A second reading is due on 9
March 2001. The paper also summarises the results of the Government
consultation on the issue.

The
Bill will cover England and Wales. A background to the problem and the
current legal position can be found in Library Paper 99/35 The Control
of High Hedges. Elena
Ares

SCIENCE
AND ENVIRONMENT
SECTION
HOUSE OF COMMONS LIBRARY

Summary
of main points

In
January 2000 the Government consulted on the issue of high hedges. The
Consultation offered four possible approaches to dealing with the issue:

Promote
existing procedures;

Non-legislative
approach;

Extend
easements of light;

System
based on complaints.

The
Consultation results showed a large majority support for a complaints
based system.

The
current Private Member’s Bill introduces a complaints system for
dealing with the

problem.
Owners or occupiers of a property will be able to complain to local
authorities if

the
property is affected by an unreasonable obstruction of light caused by a
high hedge. A

high
hedge is defined as two or more adjacent evergreens which together form
a barrier of

more
than two metres high.

The
Bill will allow for consideration disputes predating the legislation.

A
background to the problem and the current legal position can be found in
Library Paper

99/35,
The Control of High Hedges.

CONTENTS

IThe Issue7

II
Past Bills9

III
Consultation 11

A.Possible Options 11

B.
Responses 12

IV
High Hedges Bill 14

A.
Scope 14

B.
Power to make regulations 15

C.
Complaints system 15

D.
Responses 16

1.
Hedgeline

16
2. Local Government Association

17
V
Scotland
18

RESEARCH
PAPER01/20 7

I
The Issue

The
issue of high hedges has received extensive publicity as rapid growth
evergreen hedges have become
increasingly popular over the last 30 years as a way of screening

neighbouring properties from each other.

The
species most frequently of concern is the Leyland Cyprus (X Cupressocyparis
leylandii),
which is commonly known as Leylandii. This is a fast growing evergreen
hybrid, with a growth rate of 1 metre (3 feet) per year, which can reach
heights of 30 metres (100 feet). Because of this high growth rate,
proper maintenance requires trimming at least two or three times a year.

1

If
planted as hedging and not properly maintained it can cause various
problems, the main one being loss of light. Whether this is intentional,
when the hedge is being used as a screen, or unintentional, because
proper maintenance has not been carried out, it can lead to disputes
between neighbours.

This
problem is not restricted to Leylandii, as there are other evergreen
species with similar
characteristics:

Species

Growth
rate

(cm/year)

Ultimate
Height (Metres)

Leylandii
100 30

Lawson
Cypress 60 20

Thuja
(western red cedar) 75 25

Privet
60 13

Yew
20 13

Holly
30 10

Source:
High Hedges, possible solutions.

2

A
1993 report Trees in Towns found that the most common, at 22%,
type of tree in urban areas was a
cypress type tree, including Leylandii. More importantly, cypress type
trees accounted for 50% of hedges higher than 2.5 metres.

3

Hedgeline
is an organisation that was set up in 1998, by members of the public
concerned about the problem of high hedges. Their aim is to campaign for
effective legislative control of problem hedges. They see the following
as problems associated with high hedges:

1

DETR,
High Hedges: possible solutions A consultation paper covering England
and Wales, November

DoE,
Trees in towns: a survey of trees in towns and villages in England,
HMSO, 1993

RESEARCH
PAPER01/20 8

Untopped
fast growing hedges can be grown, and left untopped and unmaintained, so
that the burden of continual, often hazardous maintenance falls on a
person, not wanting this hedge, and by law prevented from reducing its
height. These tree and shrub hedges frequently;-

Threaten
roofs, gutterings, drains.

Deprive
unwilling sufferers of light in their houses.

Deprive
them of the right to use their gardens in the way they choose. Small
gardens can be completely dominated by the high neglected hedge at the
bottom of someone else’s large garden. This can prevent them from
growing the plants they wish to grow.

The
Government consultation on high hedges listed the following as the most common
problems giving rise to complaints:

Reduction
in light

Blocking
views

Damage
to drains and nearby structures

Other
concerns, including poor mental and physical health

Using
data on the number of complaints (5,200) received by around 30% of local
authorities in the year 1998-99
the DETR estimated the likely number of problem hedges in England and
Wales to be 17,000.

5

4

Hedgeline,
Some thoughts on the subject of hedge tyranny, September 1997

http://freespace.virgin.net/clare.h/hdg8Tyr.htm

5

DETR,
High Hedges: possible solutions A consultation paper covering England
and Wales, November

There
exists a common belief that current law should be able to deal with the
problem of high hedges. Existing
legislation, as summarised in Library Paper 99/35, in the fields of
planning, nuisance, tree roots and right to light does not seem to offer
any solution.

During
the 1998-99 session Andrew Rowe presented the (Hedges Control) Bill [Bill
28 of 1998-99]. This aimed to
control high hedges by changing planning law to apply when the amenity
value of land in a residential area is judged to be adversely affected
by the condition of any hedges.

The
above Bill never reached second reading. However, Baroness Farrington of
Ribbleton made a statement on the
limitations the Government saw with changing the planning laws to set
height limitations for hedges, when discussing a subsequent Private
Members Bill:

Our
study of the matter suggests that to bring the height of hedges within
planning law may be disproportionate. Such controls would apply to all
hedges, existing ones as well as any planted in the future, regardless
of whether they caused problems. It would mean a spate of activity
because to keep within the law owners would have to seek permission if
their hedge exceeded a specified height limit. This would involve a
major effort on the part of both hedge owners, including the noble Lord,
Lord Dixon- Smith, and myself, and local authorities. Such a solution
would also have other practical difficulties. For example, people might
be uncertain as to at what point a growing hedge exceeded the height
limit and thus required planning permission.

6

The
Control of Residential Hedgerows Bill [Bill
61 of 1998/1999] was presented by

Jim
Cunningham in the 1998-99 session.

7

This
would have added to the list of statutory nuisances in s79 of the Environmental
Protection Act 1990 “any residential hedgerow in such a place, or
maintained in such a manner, as to be prejudicial to health or a
nuisance”. The Bill did not reach second reading.

Baroness
Gardner of Parkes introduced a bill in the House of Lords in the
1999-2000

The
addition of high hedges to a list of statutory nuisances is not
supported by the Government as
case law suggests that this would only be a successful approach in a
very limited number of cases. During the second reading of the Statutory
Nuisances (Hedgerows in
Residential Areas) Bill in
Lords the Government spokesperson, Baroness Farrington of Ribbleton,
stated on this:

The
Government have an open mind at this stage about the best way forward.
All options have merit but obviously some have limitations. Our
investigations have raised doubts about the effectiveness of the
proposal in the Bill to add boundary hedges to the list of statutory
nuisances in Section 79 of the Environmental Protection Act 1990 […]
During the passage of that legislation Parliament considered whether the
definition of statutory nuisance should be widened, for example to
include nuisance from flood and security lights. It was concluded that
statutory nuisance legislation was not the most appropriate way to deal
with these problems. Among the issues
considered were the additional burdens that such a move might place on
local authority resources.

In
theory, the remedy exists and no change to the law is necessary. In
practice, however, no one has successfully used these provisions to
solve hedge problems because existing case law (not involving hedges)
suggests that, in deciding whether something is a statutory nuisance,
account should be taken of the background and intentions of the
legislation. These are concerned with issues of public health and mean
that there must be a direct risk of disease or illness for the matter to
be a statutory nuisance. For example, if someone could show that dust
particles in the hedge foliage caused or aggravated respiratory problems
or an allergy he might be able to use these provisions to remedy the
situation. Where the person suffers stress- related illnesses, which we
believe account for the vast majority of nuisance hedge cases, it is
likely to be difficult to prove that the hedge rather than the dispute
with the neighbour is the cause. To add hedges to the list of statutory
nuisances will not remove these difficulties. It appears to the
Government that the approach in this Bill may be of no more use than the
existing provisions in controlling boundary hedges.

9

Jim
Cunningham introduced a ten minute rule Bill, again called the Control
of Hedgerows in
Residential Areas Bill on 29
February 2000. The aim of the Bill was, again, to include tall hedgerows
to the list of environmental nuisances and extend the powers of
environmental health officers to intervene in neighbourly disputes.

9

HL
Deb 11 January 2000 c 611

RESEARCH
PAPER01/20 11

III
Consultation

A.
Possible Options

The
Department of the Environment, Transport and the Regions consultation
paper on this topic, High
Hedges (November 1999) is available on the DETR website.10

It
considered four options.

Promote
existing procedures;

Non-legislative
approach;

Extend
easements of light;

System
based on complaints.

The
paper represented a considerable development in Government thinking on
the topic, since earlier
responses had simply been to state that “they were considering whether
to intervene and, if so, in what way”. The Paper accepted that
improvements might be made upon the legal recourse currently available
to those suffering from nuisance hedges.

The
system based on complaints was favoured, because the first two would
bring little benefit, while the
third would only bring benefit to some people, and then at considerable
cost in legal fees.

The
paper listed the key features of a complaints-based system (p 34):

Someone
who was adversely affected by a high hedge, for example a neighbour,
could complain to their local authority.

There
might be a fee, possibly to be paid by the person making the complaint. The
local authority would consider the complaint only if certain criteria
were met. These might restrict complaints to conifer hedges on or next
to residential

properties.
They might also specify that the hedge must be above a set height and
within a certain distance of the boundary. Alternatively, complainants
might need to provide evidence that the hedge was obstructing light or
interfering with the amenity of their property.

Local
authorities would decide whether to uphold the complaint, taking account
of all the circumstances of the
case – including the hedge owner’s views.

Where
a complaint was upheld, the local authority would serve a notice on the hedge
owner requiring them to reduce the size of the hedge or remove it
altogether, within a specified deadline, for example two months.

10

DETR,
High Hedges: possible solutions A consultation paper covering England
and Wales, November

The
hedge owner would be able to appeal against such a notice. The appeal
might be heard by an internal
review within the local authority, or by the Planning Inspectorate.
Action would be suspended until the appeal was determined. If the hedge
owner failed to comply with a notice within the deadline, the local
authority could then enter the property and carry out work on the hedge,
recovering their costs from the hedge owner.

B.
Responses

The
results of the consultation where published in August 2000. The DETR
received 3,062 responses to the
consultation paper. These were summarised as follows:

A
very large proportion of these came from members of the public: 2,779 in
all, or 91% of the responses. Many of these people were homeowners who
have been or are currently involved in a high hedge dispute. 755 (or
30%) of these public responses have some common elements, based on a
standard response issued by the principal campaign group (Hedgeline).
193 responses came from local authorities. This represents just 6% of
responses to the consultation paper, but also makes up a significant
proportion of local authorities in the country. The remaining 90
responses (3%) came from other organisations or professionals, including
amenity and residents associations, house builders, mediation groups and
professionals from a wide range of disciplines (such as the tree
industry, planners, landscape architects, engineers, solicitors). 11

The
vast majority of those who responded to the consultation (97%) thought
that the

Government
should take further action to deal with the issue. Consultees were asked
to state what they thought of the four proposals in the consultation
document:

In
particular, they were asked whether they thought the Government should
promote existing remedies (option 1), or issue better advice (option 2),
or introduce new laws in one form or another (options 3 and 4). An
overwhelming majority of respondents (2,867 or 94%) believed that new
laws should be made. This high demand for legislation came from all
classes of respondents: 95% of individual members of the public who
responded, 77% of local authorities and 72% of the other organisations
and professionals.

Statutory
complaints system

As
to what form any new laws should take, a clear majority of respondents
favoured a tailor-made statutory complaints system run by local
authorities (option 4). Almost three quarters ofrespondents (2,205 or 72%) wanted to see the introduction of such
a system, either on its own or combined with other measures.
Furthermore, a complaints system was the clear majority 11

DETR
Press Release 540/00, Nuisance hedges to get the chop, 10 August
2000

RESEARCH
PAPER 01/20 13

choice
across all sectors, including over two thirds of the local authority
respondents (129 or 67%), although they were more inclined to see a
complaints system as just one element in a larger package of measures 12

The
Government press release stated legislation to deal with the issue would
be put forward as soon as
parliamentary time became available:

The
Government is to work up new laws to be introduced in England as soon as
there is space in the Parliamentary timetable. Specially designed to
tackle nuisance garden hedges, such as Leylandii, the legislation would
mean that people could ask their local council to settle their hedge
disputes, if they could not resolve matters amicably.13

There
wasn’t a bill in the Queen's speech but the Private Member’s Bill (High
Hedges

Bill)
was introduced by John Taylor
and is discussed in more detail in the followeing

section.
A recent PQ indicates this Bill has Government support.

Leylandii
Hedges

Mr.
Blizzard: To
ask the Secretary of State for the Environment, Transport and the
Regions if he will make a statement on his plans to control leylandii
hedges and the proposed timetable for their implementation.

Mr.
Robert Ainsworth: In
August last year, my right hon. Friend the Minister for the Environment
announced our commitment to introduce legislation that would give local
authorities powers to deal with complaints about problem hedges,
including leylandii. Although it was not possible to make provision for
such a Bill in the Queen’s Speech, the issue is being taken forward as
a private member’s Bill by the hon. Member for Solihull (Mr. Taylor).
The High Hedges Bill was introduced on 17 January and is due to have its
Second Reading on 9 March. 14

This
is a Private Members Bill introduced by Mr John Taylor on 17 January
2001 and

will
have a second reading debate on 9 March.

A.
Scope

The
explanatory notes give the following overview of the Bill: The Bill makes provision for local authorities (district or
unitary councils, London Boroughs, the City of London in England, and
Welsh equivalents) to determine complaints by the owners/occupiers of
residential property affected by evergreen hedges that are over 2 metres
high and obstruct light to the

complainant’s
home or garden. The local authority would be able to charge a fee for
this service, to be paid by the complainant. They would also be able to
reject the complaint if they considered that insufficient effort had
been made to resolve the matter amicably, or that the complaint was
frivolous or vexatious. The local authority would, if they considered
the circumstances justified it, issue a notice requiring the owner or
occupier of the neighbouring land to undertake action to remedy the
problem and to prevent it recurring. This would be known as a
’remedial notice’.

9.
The Bill includes rights of appeal against the local authority’s
decision and enables the remedial notice to be enforced through criminal
prosecutions and/or by the local authority entering the land and
carrying out the necessary work if the owner or occupier fails to do so.
15

A
detailed clause by clause commentary on the Bill can be found in the
explanatory notes.

The
Bill will apply to a complaint made by the owner of occupier of a
property if: it
alleges that his reasonable enjoyment of that property is being affected
by an unreasonable obstruction of light caused by a high hedge situated
on land owned or occupied by another person.

16

For
the purpose of the Bill a high hedge is defined as two or more adjacent
evergreens

which together form a barrier of
more than two metres high. This is different from the definition
established in the courts during the Stanton v
Jones case. This was a
case in which the hedge marked the boundary between the two properties
and was a party hedge to be maintained by the occupants on either side.
The dispute reached the Court of Appeal in 1994 and was then was
referred back to the County Court in November

There
was scope for legal argument as to whether cutting off the tops of the
trees in the hedge did or did not constitute maintenance. During the
case the judge gave the following definition of a hedge:

"hedge"
means a number of woody plants, whether capable of growing into trees or
not, which are so planted as to be intended to be in line and, when
mature, to be so integrated together as to form both a screen and a
barrier. 18

If
the above definition were to be used it would extend the Bill to hedges
consisting partly or wholly of deciduous trees.

B.
Power to make regulations

The
Bill also gives the Secretary of State or the Assembly for Wales the
power to amend regulations to extend the scope of what could be
considered a domestic property, what can be considered a high hedge and
what is an unreasonable obstruction of light. There is currently no
definition in the Bill of what "unreasonable obstruction of
light" would be. According to the DETR briefing on the Bill the
Building Research Establishment and the Tree Advice Trust are currently
developing

objective
tests that would show:

If
a hedge is obstructing daylight and/or sunlight

Whether
this is unreasonable

How
much it needs to be reduced by

The
aim is to have simple tests so that householders and local authorities
can use it (sic)
without specialist input. It is hoped this will help cut down numbers of
complaints because people would be able to predict the outcome and it
would enable them to negotiate with hedge owners from a position of
strength. 19

C.
Complaints system

The
local authority would be able to charge a fee to be paid by the
complainants. This will be
limited by regulations. The DETR briefing on the Bill indicates that the
fee will be in the £100 region. Costs to local authorities are
estimated at £200 per case.

20

The
Local Government Association agrees with this, estimating an average of
eight man-hours per case at a
cost of £25/hour.

If
authorities decide action should be taken they will be able to issue a
remedial notice, setting out to
the owner of the hedge any action to be taken, including maintaining the
hedge at a lower height. A right of appeal will exist for both parties.
Courts will have the power to impose a fine of up to £1000 (level 3
fine) for failing to comply with
a remedial notice and will have the power to issue an order for work to
be carried out. Courts would be able to impose a further fine of £1000
for failure to comply and a daily
charge until work is carried out. The daily charge should not

exceed
a twelfth of the level 3 fine.No
time limit is set for dealing with complaints by local authorities.

D.
Responses

1.
Hedgeline

Hedgeline
supports the Bill, and is in favour of the use of a measurement of light
to decide whether a hedge is a
problem:

The
idea of having a single light criterion to judge the height to which
problem hedges should be reduced is because:

The
aim is to have simple tests so that householders and local authorities
can use it without specialist input.

Loss
of available light is measurable. All other nuisances which hedges can
cause are not measurable in the sense that an objective scale of
heights, relative to size of gardens, can be developed. It
is acknowledged that light is not the only problem, but it tends to be
the main one and it can be used to identify the problem hedges,
irrespective of what is the main form of nuisance they are causing. A
problem hedge will nearly always cut off light whatever other nuisance
it causes. The work, at present being commissioned by the DETR, should
help establish how far this one easurement encompasses other hedge
problems and so can be used as a proxy.

The
scale of light measurements is a new one, being developed now and tested
on our members hedges. It has nothing to do with the old much eroded,
and virtually unusable, ’right to light’law .

With this light criterion operating, victims would be able to predict
the outcome and it would enable them to negotiate with hedge owners from
a position of strength.

Their
main criticism of the Bill is: that
there are various points in the Bill where the Local Authorities are not
given sufficient direction, for example over the matter of whether they
should impose ongoing maintenance on the hedges as well as a once-only
reduction in height. 23

2.
Local Government Association

The
LGA produced the following response to the Government announcement of
its intention to legislate:

Local
Government Association leaders today welcomed government proposals for
new local authority powers to help them deal more effectively with
neighbourhood disputes over the ever growing problem of leylandii trees.
Cllr Jane Chevis, chair of the Association’s public protection
executive said:

`These
fast growing trees are a huge problem in some parts of the country but
current regulations do not enable local councils to tackle it
effectively and they are often only able to provide mediation between
disputing neighbours. `We are pleased that the government has finally
decided to give councils more effective powers to tackle this issue.
However these proposals include very little detail and we look forward
to discussions with ministers in the near future to examine what
legislation would need to include’, she said.

24

The
Local Government Association main concern with the legislation is that
it should allow local authorities
to recover all the costs involved in dealing with complaints. They agree
that as simple method as possible should be used to determine whether a
hedge is causing problems and that light obstruction is a reasonable way
forward. The other main concern is that a great emphasis has been placed
on mediation as a way of reducing the numbers of complaints. This not a
universally available service and something which local authorities are
not usually able to fund.

25

There
is some provision of mediation services through third party
organisations such as the charity Mediation UK

26

which
can aid in the resolution of conflicts without resort to court
proceedings. 23 ibid

The
Scottish Executive began a consultation on high hedges in January 2000.
The aim of this was to establish whether a problem existed similar to
that in England. There were 90 formal responses. In addition 120
individuals wrote to the Scottish Executive on the issue.

Following
the consultation, the Executive concluded that, though the problem was
not as extensive in Scotland, councils should be given new powers to
intervene in disputes:

Justice
Minister Jim Wallace took steps today to cut the scope for neighbourhood
problems over garden hedges, with an announcement that he would support
new powers for councils to intervene.

However
he noted that the introduction of new powers would have to wait for a
suitableopportunity in the
Parliamentary programme.

Consultation
on the issue shows that legislation is needed to tackle high boundary
hedges in gardens which create a significant nuisance to neighbours.
Local authorities will need powers to deal with troublesome hedges -
such as Leylandii allowed to grow unchecked - but only as a last resort
if matters cannot first be amicably resolved between neighbours.

Mr
Wallace said "We recognise that overgrown garden hedges cause
distress to a number of people in Scotland. Though the problem is not as
widespread here as in England, such hedges can seriously affect
people’s quality of life so that we do require to take the problem
seriously. "Our consultation has confirmed a demand exists for
tougher controls to provide a remedy for those who have exhausted all
other avenues.

"We
are committed to dealing with the problems people are experiencing when
a suitable legislative opportunity becomes available." The
announcement follows public consultation inviting people to give their
views on the scale of such problems and on whether a statutory remedy
was required. Around 90 organisations and individuals responded to the
consultation paper, with a further 120 members of the public writing in
with their views, and explaining their difficulties.

Almost
all the individuals who responded were strongly in favour of giving
local authorities powers to order problem hedges to be cut back. The
views of interested organisations were more divided on whether an
additional remedy was required. 27